R. v. Dhillon Date:, 2012 BCPC 504

Citation: R. v. Dhillon Date: 20121130 2012 BCPC 0504 File No: 186387-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GURJIT SINGH DHILLON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: C. MacPherson Counsel for the Defendant: M. Stern Place of Hearing: Surrey , B.C. Dates of Hearing: August 22, 23, 24, 27, November 19, 2012 Date of Judgment: November 30, 2012 [ 1 ] THE COURT : I will commence by outlining my reasons. I will commence with an Introduction. I will make reference to the

Testimony and Exhibits. I will make reference to Points Common To Both Cases and the Presentation of Counsel. I will turn next to theApplicable Law, breaking that down into Legislation, Criminal Code, the case law on the elements of dangerous driving from thecasebooks of counsel, and an analysis of some instructions with respect to street racing because I must deal with that because it is on theindictment. I will deal next with Credibility and then Circumstantial Evidence. I will provide summaries of the submissions of counsel,starting with the Crown and then the defence.

I will then recite the Facts that I have found based on the evidence tendered before me andthe exhibits, as well as the admissions. I will then enter into a Discussion of the facts and the applicable law. Last, I will state to theConclusion. INTRODUCTION [2] I am indebted to Mr. MacPherson and Mr. Stern for their presentation of this case. Much of the examination and cross-examination pertinent to the assessment by the court of the determination of the facts and the application of the law is dependent uponthe examination and cross-examination of counsel.

In addition, counsel arrived at a number of Admissions which form Exhibit 10 inthese proceedings which assist in terms of the applicable facts to be found by the court as established and on which inferences may bedrawn. In the context of those presentations, I am indebted to both Mr. MacPherson and Mr. Stern for their refinement of their points intheir closing submissions. THE TESTIMONY AND THE EXHIBITS [3] We heard from a number of witnesses in this case. We heard from a classification of witness that I will call the stage-setters,those being Cst. Lee and Cpl. Hewitson who took photographs, Cpl.

Dyson who took measurements, Cpl. Qureshi who prepared reportsand whose not to scale but to measured items to scale Exhibit 6 informs the path of the vehicle that led to the horrific consequences inthis case. [4] There are points common to both of those cases that are contained within the information which is the indictment whichestablishes this case. As I have alluded to in my introduction, the indictment charges Mr. Dhillon with dangerous driving causing deathwhile street racing. During the course of the trial it became apparent that common to both parties was time, the place and identification.

The issue at this case which has been struck by counsel is whether or not the evidence tendered by the Crown proves beyond areasonable doubt that Mr. Dhillon was, at the time of driving through the intersection at 72nd Avenue and 128th Street here in Surrey, inthe province of British Columbia, driving dangerously, contrary to the provisions of s. 249(1) of the Criminal Code. All of the othermaterial elements other than the actus reus of the offence of dangerous driving and the mens rea element, the fault element have beencommon to both cases.

In that sense, counsel have made this matter much more simple in terms of analysis. While we must be aware atthe same time that although counsel have focused those issues, the course of the trial and in particular the testimony of the witnessespresented vastly different cases. THE APPLICABLE LAW [5] In my review of the facts and the appropriate legislation to be considered, I have considered provisions of the Motor VehicleAct. I have done so on a foundation of Mr.

Stern's submissions that his client should not be held criminally responsible in a circumstancewhere such a brief time was engaged and where the Motor Vehicle Act has provisions which would deal with the level of carelessness ornegligence defined. As a result, I have considered the provisions of the Motor Vehicle Act as follows. I have considered s. 127(1)(a)which is the governing piece of legislation on how a vehicle is to proceed through an intersection on a green light. For ease of referenceand by way of

summary, the

section provides that a person "may cause the vehicle to proceed straight through the intersection." I haveconsidered as well, s. 144 in its entirety, having regard to the provisions of 144(1)(a), (1)(

b) and (1)(c). I have as well considered s. 151of the Motor Vehicle Act with respect to what one is required to do by way of legislation on changing lanes. THE APPLICABLE CASE LAW RELATED TO DANGEROUS DRIVING [6] Mr. MacPherson provided a number of cases by way of Crown authorities. In particular, he asked the court to consider R. v.Hundal, (SCC), [1993] 1 S.C.R. 867; R. v. Beatty, 2008 SCC 5 , [2008] S.C.J. No. 5 (S.C.C.). I note thatBeatty by way of neutral citation is 2008 S.C.C. 5. Counsel have also provided in the defence case book the Dominion Law Reportscitation which is 289 D.L.R. (4th) 577.

The most recent statement from the Supreme Court of Canada is that contained in R. v. Roy,2012 SCC 26 , [2012] S.C.J. 26. It is also, by way of neutral citation 2012 S.C.C. 26. Both counsel also provided a decision inthe British Columbia Supreme Court from 2012, that being R. v. Nielsen (2012), BCSC 1581; also [2012] B.C.J. No. 2213. Mr.MacPherson provided R. v. Richards (2003), (ON CA), O.J. 1042 (O.C.A.). Mr. Stern provided as well, R. v. Kerr2012 BCSC 1311; [2012] B.C.J. No. 1841.

I am particularly struck by a number of passages in those cases, and for the purposes ofinforming those who are present how it is that I have approached the applicable law and the facts in this case I will, for ease of reference,refer to those specific paragraphs. [7] In R. v. Beatty, citation given, I have considered the language of Madam Justice Charron in paragraphs 36, 37, 47 and 49; thelanguage of Chief Justice McLachlin at paragraphs 66 and 75; and Mr. Justice Fish at paragraph 88. Let me deal with Beatty first.

InBeatty the Supreme Court of Canada was articulating and clarifying the test earlier articulated by Mr. Justice Cory, as he then was, in R.v. Hundal with companion reasons given by Chief Justice McLachlin on what they classified as the "modified objective approach." Atparagraph 36 in Beatty Justice Charron was discussing the objective test from Hundal. She said: For that reason, the objective test, as modified to suit the criminal setting, requires proof of a marked departure from the standard of carethat a reasonable person would observe in all the circumstances.

As stated earlier, it is only when there is a marked departure from thenorm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability. With themarked departure, the act of dangerous driving is accompanied with the presence of sufficient mens rea and the offence is made out. TheCourt, however, added a second important qualification to the objective test — the allowance for exculpatory defences.

She continued at 37: The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. However, there will be circumstances where this underlying premise cannot be sustained because a reasonable person in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger.

Of course, it is not open to the driver to simply say that he or she gave no thought to the manner of driving because the fault lies in the failure to bring to the dangerous activity the expected degree of thought and attention that it required.

As Cory J. explained (at p. 885 of Hundal): It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident. [ 8 ] She continued with the further explanation of the modified test at the concluding portion of paragraph 37. [ 9 ] As to the determination of the mens rea or the fault element, Madam Justice Charron continued at paragraph 47 as follows: In determining the question of mens rea , the court should consider the totality of the evidence, including evidence, if any, about the accused’s actual state of mind.

As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea , it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or willful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant.

For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met.

One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a “marked departure” from the standard expected of a reasonably prudent driver. [ 10 ] She then continued with a discussion of the analysis in R. v. Willock , which I will refer to independently. The reason that I will refer to Willock independently is because that was a case involving criminal negligence involving death, and the analysis of Mr.

Justice Doherty will be of assistance to the analysis on which I must embark, entailed an analysis of a

section significantly different than s. 249(1) of the Criminal Code . [ 11 ] 249(1) of the Criminal Code provides in subsection (

a) the following: Everyone commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. [ 12 ] That is the legislated

section with which the court was dealing in the decision in Beatty and with which it had dealt in the decision in Hundal . In Willock Mr. Justice Doherty of the Ontario Court of Appeal was particularly careful in his analysis of the determination of mens rea . In Willock at paragraph 31 Justice Doherty was particularly careful about articulating the nature of the conduct in the course of an assessment of what constitutes a marked departure from the standard expected of a reasonably prudent driver. It is apparent that it is a matter of degree.

At paragraph 31 he stated: ...conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum. [ 13 ] What he was dealing with was of course the matter of degree, and in Willock what he was talking about was a two to three- second interval.

The reason that that is significant in the case at bar is that here we are dealing with a similar brief timeframe, likely dealing with something in the range of three to five seconds of time in the driving within the intersection of 72nd and 128th. [ 14 ] I will not read the rest of paragraph 48. I will make reference to paragraph 49 of Beatty in this way. Madam Justice Charron continued: If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out.

If, on the other hand, the trier of fact is convinced beyond a reasonable

doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the accused. [ 15 ] I pause to note that in this case there has been no evidence led on behalf of the defence. The onus never shifts to the defence.

The Crown is required, as a matter of principle and of principled analysis, to prove all of the requisite material elements of the offence beyond a reasonable doubt. [ 16 ] Chief Justice McLachlin formulated the theory in a different fashion at paragraph 66. I will not quote from the whole of it, but I have considered it and instructed myself in light of her language in that paragraph.

I similarly have looked at the language of Chief Justice McLachlin in paragraph 75 as it informs me in the context of this case given the evidence which is before me, and that will become abundantly clear when I deal with the circumstantial evidence in a few moments. Chief Justice McLachlin said: Willock should thus not be read as suggesting that in cases of momentary lapse of attention, the Crown must prove that the accused subjectively intended to drive in a manner that constituted a marked departure from the norm and endanger lives, in order to establish the offence of dangerous driving.

Additional evidence capable of establishing that a momentary lapse is part of a larger pattern of dangerous driving may indeed be adduced. But as suggested in Hundal, this will generally be objective evidence of the accused’s entire driving pattern. The accused’s conduct and words may be part of this pattern. But since this is a negligence offence, the concern is with objective mens rea . The ultimate issue is not what was in the accused’s mind at the time of the aberration, but the manner of his driving in all the circumstances. And I would highlight that.

So the test to be applied by the trier of fact or the judge instructing him or herself, is the manner of the driving in all the circumstances. [ 17 ] Justice Fish at paragraph 88 described the fault element as follows: The fault element, however, is not the marked departure from the norm of a reasonably prudent driver but the fact that a reasonably prudent driver in the accused’s circumstances would have been aware of the risk of that conduct, and if able to do so, would have acted to avert it.

This requisite mental element may only be inferred where the impugned conduct represents a marked departure from the norm; it cannot be inferred from the mere fact that he or she operated the motor vehicle in a dangerous manner. [ 18 ] So what he is saying is that there has to be, in the assessment of the totality of the circumstances, more than a simple manner of driving or operation of the motor vehicle in a dangerous manner. To that extent, he differs with the majority in Beatty . [ 19 ] There is more.

In Roy , Justice Cromwell of the court analyzed the earlier decisions, in particular at paragraphs 37 and 38 and continued at paragraphs 39, 40, 41 and 42 with the test which, since he was writing for the court in Beatty , was an attempt to clarify the earlier decisions in Hundal and Beatty . Because it has been part of the analysis and submission of Mr. Stern, I am going to quote in full from paragraphs 37, 38, 39, 40, 41 and 42 for ease of reference. He wrote: Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.

As noted earlier, Charron J., for the majority in Beatty, put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34). The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving.

But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71). The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40).

Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required . . . And he made reference to those portions of Beatty to which I have referred, although he also asked that the reader consider paragraph 86. He continued:

(5) Proof of the “Marked Departure” Fault Element

Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all ofthe circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused’sactual state of mind (para. 43). [20] I pause to note that the accused's actual state of mind in this instance is articulated by the evidence of Mr. Grewal, who has saidwhat Mr. Dhillon said while they were in the intersection and moving out of it.

In Exhibit 9, the 9-1-1 tape immediately thereafter whenthere was a conversation with the 9-1-1 operator. That was Mr. Dhillon speaking and expressing what he said happened. [21] Paragraph 40 in Roy: Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner thatconstituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving,the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from themanner of driving.

The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of amarked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectivelydangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused wouldhave been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of thecircumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonableperson in the same circumstances would have exhibited. Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedlyfrom the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, andFish J., at para. 88).

In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that therequired fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support thatinference. I will keep those instructions in mind as I turn to a consideration of the other legal issues, but as well when I relate the facts which I havefound in the course of my deliberations. [22] I will deal next with street racing.

In the assessment of whether or not street racing has occurred, and I am indebted to Mr.MacPherson for his candid position that the Crown is of the view that the Crown has not established street racing beyond a reasonabledoubt in the case at bar, I must look to the whole of the evidence, but in particular the testimonies of Mr. Hopkins, Ms. Bond, Mr. Frilundand Mr. Camara.

It will become abundantly clear why I did not accept their evidence on the issue of street racing when I relate how Imust approach the credibility, the accuracy or reliability of witnesses, or the veracity of witnesses when I outline how I have approachedthe testimony in this case. But it is important that I explain to the parties, both the family of Mr. Binning and to the accused, what I havedone in the course of assessing the testimony in this case. [23] In R. v.

Charemski (1998), (SCC), 123 C.C.C. (3d) 225 the Supreme Court of Canada determined that sincethere is rarely direct evidence of a race, judges or juries are often required to consider circumstantial evidence. I will explain how I amgoing to approach circumstantial evidence later, but it is apparent from the authorities that there must be no other rational or reasonableexplanation for the circumstantial evidence than that both parties were engaging in a race. I am mindful of the direction of the SupremeCourt of Canada, but also particularly drawn to the analysis of Justice Durno in Ontario in R. v.

Machado in how I should approach theanalysis of the issue of street racing raised in this indictment. Justice Durno at paragraph 16 articulated it aptly. He said: What is clear is that there was no requirement for a starting or finishing line, the agreement to race does not have to be in writing or evenverbalized, the drivers do not have to know each other, nor is a challenge by word or sign required. That one car overtakes another initself is not sufficient to establish a race. That one driver issues a challenge to the other who does not accept it does not establish a race.

That one or both drivers are showing off, in itself, does not equate with a race. That one driver is attempting to keep up with the firstvehicle does not establish a race was occurring. Similarly, there will not be a race where two vehicles are coincidentally speeding sideby side. [24] In order to inform the assessment, it was the position of Justice Durno, and I am guided by this although I need not follow him,that in the absence of direct evidence of a race the court should consider a number of factors.

Those are set out in paragraph 18 inMachado, which is 2010 OSC Superior Court 277; 2010 ONSC 277 , 2010 O.J. 387. The list included some 11 points: (1) two vehicles travelling at excessive speeds;

(2) two vehicles being driven aggressively in tandem; (3) two vehicles in close proximity to each other over a material distance; (4) one vehicle tailgating the other or other vehicles; (5) abrupt and unsafe lane changes; (6) blocking; (7) bold manoeuvres in and out of traffic; (8) jockeying for position; (9) high-risk passing manoeuvres; (10) acts or gestures between the drivers; [25] He also dealt with conclusory statements of opinion from lay witnesses, and he expressed it this way and it is particularlyinformative to this case in light of the witnesses to which I have already referred: (11) lay witnesses’ opinions that the drivers appeared to be racing although a conclusory statement that the drivers were racing is ofminimal evidentiary value without the bases upon which the witness reached that conclusion.

It would be akin to seeking to establishdangerous driving where the only evidence was a witness who said, “I was sitting on my porch and the accused drove his car down theroad in a dangerous manner.” [26] It is an iteration of the fact that conclusory statements of opinion by witnesses are not admissible in evidence unless it meetssignificant standards articulated in either prior law or meets the scientific tests.

Otherwise, judges are to be gatekeepers and to keepconclusory statements of opinion out of evidence, as they reflect the opinion of the witness and undermine the fact that the trier of fact isthe judge or the jury in the given case. [27] Having considered those factors I am in complete agreement with Mr. MacPherson that due to the inaccuracies, inconsistenciesand the lack of detail in much of what was articulated by the four witnesses to which I have referred, that they were not accuratewitnesses and therefore not reliable for the purposes of establishing street racing to the requisite criminal standard.

I will turn next tocredibility. CREDIBILITY [28] When judges refer to the credibility of witnesses we are talking about the reliability of the witness and whether or not thewitness is accepted as providing accurate testimony which we can accept as fact. The test was articulated to some extent by JusticeDoherty in very clear language in R. v. Morrissey (1995), (ON CA), O.J. No. 639 (O.C.A.) as follows: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingnessto speak the truth as the witness believes it to be.

The latter concerns relate to the actual accuracy of the witness's testimony. Theaccuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events inissue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with theaccuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is notcredible cannot give reliable evidence on that point.

The evidence of a credible, that is honest witness, may, however, still be unreliable. [29] That is particularly apt because I found that all of the people who testified in this case were doing so knowing how serious theevents were. The events were serious in that there was a tragic death. The events were equally serious for Mr. Dhillon because he ischarged with an offence which has a potential for life imprisonment. So the consequences of the testimony of the people who cameforward in this case were readily apparent to all. I found no one that was trying to mislead the court.

It is significant that those whotestified may have made mistakes as to placement or movement, but I found all of them frank in terms of attitude and demeanour, and Isaw little evidence of motive or bias or evasive responses in the course of testimony. [30] When it comes to assessing credibility in trials before me and in order to correctly charge myself on the law, the followingprinciples direct my analysis and assessment of the testimony of witnesses. This is particularly how I approach the evidence in a casesuch as the case at bar:

(1) I consider carefully all of their testimony;

(2) I chart it. I therefore have a means of comparing what onewitness has said as against what another witness has said on each point of evidence. I am aware that the issue of credibility is one of factand cannot be determined by following a set of rules. I am instructed to that by White v. The King, (SCC), [1947] S.C.R.268 at 272. I also am careful to instruct myself that as the trier of fact I must consider not only the witness' desire to be truthful, but alsoopportunities of knowledge, powers of observation, capacity for recall, capacity to articulate and the power or lack of power of memoryof each witness.

I therefore look to each witness and assess their testimony within the following factors: the capacity of the witness toremember, the accuracy of the witness' statement, the care of the witness in answering, the sincerity of the witness in terms of manner,

the frankness of the witness in attitude and response to questions. [31] Those foregoing points are guidelines for me as the trier to analyze the testimony. In addition to that, I consider as well as partof my assessment of each witness a number of factors in considering the examination and cross-examination of the witness. Is thewitness evasive, belligerent or inappropriate in response? There was not much of that in the testimony before me. I look to the existenceof prior inconsistent statements or previous occasions on which the witness is found untruthful.

We had little of that here, although wehad prior statements in which inconsistencies were provided to the witness in comparison with their current testimony in the trial. I lookto the external consistency of the evidence. Is the testimony of the witness consistent with independent evidence which I do accept? How does the evidence of the witness fit with the other evidence in the case, such as photographs, tire marks, the placement of tiremarks, diagrams? What about other testimony which is considered or accepted independent evidence?

How does that witness fit withthe other evidence in the case? [32] It was readily apparent in the case at bar that we had significantly different descriptions from the eight witnesses who werecalled and testified as to what they had observed. I have considered all of their testimony in comparison with the direct evidence of Mr.Grewal, who was a passenger in Mr. Dhillon's vehicle.

I have considered all of their testimony in terms of whether the witnesses'evidence changed while they were on the stand; were there self-contradictions apparent in the testimony of the witness; was thereevidence which conflicted with the present testimony? Mr. Stern put many an inconsistency from prior statements to witnesses duringthe course of his cross-examination in the case. Mr. MacPherson tried to refresh memory through the use of a statement. [33] I also considered the internal consistency of the testimony in each of the witnesses' giving of evidence.

I saw little here of anyintent to lie or mislead the court. There appeared to be no motives to do so. There appeared to be little evidence of bias or prejudice orhope of advantage. But there was an aspect of the ability of each witness to originally observe, to record in memory and to recall theevent. That was particularly significant for those witnesses who were not interviewed in a timely fashion immediately after the event bythe police.

It is of course significant to the ability of each witness to originally observe, to record in memory and to recall the event to beable to articulate clearly what it is that they saw. So you deal with the quality of their observation at the time of their looking at theevents. You look at the duration of the observation. Was there something which attracted their attention? Did they have the ability torecall collateral details? What about the effluxion of time, has there been a time lag? Is there evidence of influences? Is there evidenceof reconstruction, self-contradiction?

Then finally I look to the sense of the evidence, does commonsense suggest the testimony isimpossible, improbable, unlikely? What else results when you look to that aspect of their testimony? That is the way in which I haveapproached the testimony of each witness in this case. I will turn next to circumstantial evidence. CIRCUMSTANTIAL EVIDENCE [34] In a case which is based wholly on circumstantial evidence -- and I pause to note this is not one -- this is one where there is bothdirect evidence as well as circumstantial evidence.

But where there is solely circumstantial evidence, the finding of guilt must befounded on the conclusion that "there was no other rational explanation for the circumstantial evidence than that the accused committedthe crime." (See R. v. Charemski, citation given, at paragraph 13.) This principle in Charemski was a restatement from the earlierarticulation of the same proposition by Justice Ritchie in R. v. Cooper, (SCC), [1978] 1 S.C.R. 860 at 33.

Cooper was adecision of the Supreme Court of Canada that articulated the test to be applied as follows: Before basing a verdict of guilty on circumstantial evidence [the trier of fact] must be satisfied beyond a reasonable doubt that the guilt ofthe accused is the only reasonable inference to be drawn from the proven facts. [35] Mr.

Stern, in the course of his careful submissions at the conclusion of the trial, drew those cases to my attention in myassessment of the circumstantial evidence as to the driving in the case at bar. [36] I am also guided, however, by some direction and language from the former Chief Justice of this province in R. v. To, anunreported decision CA012992, a decision from 1992 in which there were written reasons given by Chief Justice McEachern, as he thenwas, concurred with by Madam Justice Proudfoot and Mr. Justice Hollinrake. Paragraph 41 he gave us some instructions with respect toreal life situations.

He said as follows: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. I do not think it could properly be said that an inference of knowledge in this casewould be unreasonable or unsupported by the evidence. [37] I found that instructive in terms of my assessment of the testimonies of each of the witnesses in this case.

I am also mindful ofthe instructions in the British Columbia Court of Appeal by Justice Donald in R. v. Butler 2007 BCCA 526 at paragraph 16 whicharticulated the test in Cooper and Hodge's Case in clear language. I am not going to quote paragraph 16 from Justice Donald's decision,but I have utilized it in my assessment of the evidence here. [38] I am also mindful of the instruction of Mr. Justice Tysoe in the British Columbia Court of Appeal in R. v. Collin 2008 BCCA431 at paragraphs 17 and 18.

He was dealing with an alleged error of law in that case and how trial judges are to look to an assessmentof circumstantial evidence in trials and he said the following: There is no requirement, however, that all of the circumstantial evidence relied upon for a finding of guilt must be proven beyond a

reasonable doubt. Nor is there a requirement that a certain amount of the circumstantial evidence must be proved beyond a reasonabledoubt. The requirement is that all elements of the alleged offence, including the element of identity of the offender, must be provedbeyond a reasonable doubt: see R. v. Morin, (SCC), [1988] 2 S.C.R. 345 at 360-362. The applicable standard wasarticulated in R. v. Khan (BC CA), (1998), 129 C.C.C. (3d) 45 (B.C.C.A.), as follows: [9] The Crown need not prove beyond a reasonable doubt each fact which is said to support the inference of guilt.

Each fact may be alink in the chain of ultimate proof. Sopinka J. made it clear in R. v. Morin... that it is the jury’s duty to consider the evidence as a wholeand determine whether guilt has been established by the prosecution beyond a reasonable doubt. Hence, it was not an error of law by the trial judge to consider circumstantial evidence proved on a balance of probabilities in reachinghis conclusion that the whole of the evidence established the guilt of Mr. Collin beyond a reasonable doubt.

This does not derogate fromthe principle that guilt must be proved beyond a reasonable doubt. [39] It is another way of saying you do not look at each part of the case and determine whether it has been proven beyond areasonable doubt; you look to the whole of the evidence to determine whether all of the material elements of the alleged crime have beenestablished beyond a reasonable doubt. [40] From those cases and from the language of Mr. Justice Hall in R. v.

Bauer 2003 BCCA 138 , 2003 B.C.C.A. 138 atparagraph 21, I am of the view that I must consider as I view the whole of the evidence in this case, that the criminal law requires a veryhigh degree of proof for inferences consistent with guilt, but it does not demand certainty. I take it from the comments of Chief JusticeMcEachern in To and of Justice Hall and the analysis articulated by Justice Tysoe, that in assessing facts in any particular case the trialjudge is to bring to the task a measure of realism.

I will keep those instructions on the law in mind as I turn to the evidence in this case. [41] I deal, however, first with the submissions of the Crown and the defence as to the

summary of their submissions. I know I amnot going to do justice to either counsel when I summarize their position, but it is my attempt to articulate for the reader of these reasonswhat it is that I have looked to from each of their cases. CROWN THEORY [42] Mr. MacPherson, in succinct submissions, submitted that the court should look to the totality of the evidence. The Crowntheory he expressed was that the operation of the black Corvette by Mr. Dhillon was patently dangerous. He submitted that the courtshould look to the following factors: 1. Mr. Dhillon was driving his brother's black Corvette; 2. Mr.

Dhillon was driving the Corvette fast; 3. Mr. Dhillon left the stop line far too quickly after leaving a gap; 4. Mr. Dhillon accelerated rapidly and attempted to change lanes within the intersection, moving to the right lane of travel; 5. Mr. Dhillon lost control; 6. Mr. Dhillon told Mr. Grewal that he had lost control with words to the effect of, "It's out of control," or something like that. In the submission of Mr. MacPherson, this manner of operation of the vehicle in that place at that time with the crush of traffic,constituted a marked departure from the norm expected of a reasonable, prudent driver.

Therefore, he submitted that the Crown hasproven the actus reus of the offence of dangerous driving beyond a reasonable doubt. He said there was no mechanical explanation,considered the testimony of Mr. Jones - the vehicle was operating properly as to all of the mechanical operations of the vehicle. [43] As to the requisite fault element, Mr. MacPherson asserted that Mr. Dhillon made deliberate choices, albeit within a shorttimeframe. The events were brief, but reflected driving decisions and not a momentary lapse or an error in judgment over a brief time. Mr. Dhillon had been driving quickly before 72nd Avenue.

That contextual analysis is important, said Mr. MacPherson. Mr. Dhillonmade the decision to leave a gap. Mr. Dhillon made the decision to accelerate rapidly. Mr. Dhillon made the decision to change lanesabruptly. It was at that point, Mr. MacPherson argued, while he was in the intersection that he lost control of the vehicle. Mr.MacPherson's submission was that given the totality of the evidence the actions of Mr. Dhillon constituted intentional risk-taking, whichbrought his conduct within the criminal realm.

The only reality-based, reasonable inference, he submitted, was that the manner ofoperation of this vehicle just before he lost control was dangerous driving as set out in s. 249 of the Criminal Code. Mr. MacPhersonasked the court to enter a conviction of dangerous driving causing death. He conceded that there had to be a decision that this was notstreet racing. MR. STERN'S THEORY [44] Mr. Stern, in his usual full, careful, and forceful submissions, highlighted to the court the explanation of Mr. Dhillon containedwithin the 9-1-1 call.

He asked the court to listen to that carefully as it was immediately after the events. He submitted that the

explanation offered by Mr. Dhillon, when coupled with the evidence of Mr. Grewal, demonstrated an alternate reasonable inference in the factual circumstances in the case at bar. The words, "I hit a person. Something happened to my car, it just went out of control," must be considered in the light of the whole of the evidence and in particular the holes in the Crown's case established by the nature of the Crown investigation. Those holes to which Mr. Stern referred came out in full force during his cross-examination of the Crown witnesses.

In particular, he highlighted that there had never been a walk-through the intersection by the ICARS members investigating this event. There had not been measurements of the intersection from the crosswalk or the lanes of travel immediately north of the north crosswalk of 72nd Avenue and 128 through to the point of impact and the ultimate resting place of the black Corvette. [ 45 ] In addition, Mr.

Stern pointed out not only in argument but during cross-examination that the mechanical expert who had assessed the vehicle while looking at all of the mechanical movements of throttle, brakes and other operation and finding that the vehicle was fully operational, had not done computer diagnostics on either the ABS braking system, nor computer diagnostics on the throttle injector system to determine whether the proper mix of fuel and air were operating at the time that this vehicle went out of control. In the result, Mr.

Stern submitted that on the whole of the evidence the only reasonable inference was that the ABS braking system was faulty and caused the loss of control. [ 46 ] This theory, he argued, was supported by the evidence of Cpl. Qureshi and the marks T1 and T2 in Exhibit 6. The brakes and the tire marks in T1 and T2 as set out in Exhibit 6, and as well disclosed in the photographs Exhibit 1 photo 4, Exhibit 1 photo 8 and Exhibit 5 photo 7, were caused by the ABS system not operating properly, in the opinion of Cpl. Qureshi.

In the result, the only reasonable conclusion for the court to follow is that there was either a problem or there could be a problem with the ABS system. In the result, Mr. Stern forcefully submitted to the court that when in assessing the contradictory evidence of many of the witnesses, the deficiencies in the investigation and the alternate explanation provided by Cpl. Qureshi and the explanation by Mr. Dhillon, that the court must be left with a reasonable doubt on both the actus reus of the offence of dangerous driving and on the requisite mens rea or fault element for dangerous driving in the case at bar.

FACTS [ 47 ] In my assessment of the evidence, particularly the admissions, the exhibits and the testimony, I have arrived at the following facts: [ 48 ] I will deal with the Admissions. Pursuant to s. 655 of the Criminal Code of Canada the following facts are admitted for the purpose of dispensing with proof thereof: 1. The deceased is Pritnam Benning. 2. The deceased was 83 years old at his death. 3. On 17 September, 2009 Gurjit Singh Dhillon was driving a 2003 Corvette black in colour, owned by his brother Amarjit Dhillon, bearing B.C. licence plate 630 LGJ (the black Corvette). 4.

At approximately 6:00 p.m. on 17 September, 2009 the black Corvette driven by the accused collided with a bus stop bench upon which the deceased was sitting, severely injuring the deceased. 5. On 22 September, 2009 the deceased died from the injuries that he suffered when he was hit by the black Corvette driven by the accused. 6. At approximately 1803 hours on 17 September, 2009 the accused called 9-1-1. The call lasted approximately for just under five minutes. Exhibit 9 in these proceedings is an accurate recording of the 9-1-1 call made by the accused.

The accused is the male voice speaking in the English language with the female 9-1-1 operator. 7. The photographs contained in the book of photographs which is marked as Exhibit 5 in these proceedings were taken by Cst. Hewitson on the evening of 17 September, 2009. The photographs are a true and accurate depiction of the scene as viewed by Cst. Hewitson. [ 49 ] In addition to those admissions, I find from the admissions, the exhibits and the testimony of the witnesses, the following facts: 1. Gurjit Singh Dhillon drove the black Corvette south on 128th Street from 82nd Avenue. 2.

At the intersection of 128th and 80th, the black Corvette was in the left lane. A yellow Corvette was in traffic at the red light ahead of the black Corvette. 3. Both vehicles were heading southbound on 128th Street. The yellow was in front, the black was trailing. Both vehicles were travelling at approximately 70 to 80 kilometres per hour. At no time were they side-by-side except when the black Corvette passed the yellow Corvette as they were in the line of traffic and approaching the intersection at 72nd Avenue.

Until 72nd Avenue they were in a position where the black Corvette was always trailing the yellow. 4. The black Corvette was in the middle lane at 72nd Avenue. It was behind a blue Honda Accord which was the first car in line at the stop line. The yellow Corvette was in the curb lane behind and to the right of the black Corvette. 5. The light changed. The blue Honda Accord being driven by Ms. Franzman pulled slowly into the intersection after about a second to a second-and-a-half delay. As she continued through the intersection the black Corvette followed into the intersection.

As they continued, the black Corvette pulled to the right and accelerated very quickly as it changed lanes. In the translated words of Mr. Grewal I find, "Yes, it speeded all of a sudden."

6. As the vehicle was accelerating, Mr. Dhillon said out loud, "It is out of control," or words to that effect. It is not clear whether he was communicating to Mr. Grewal or he was simply commenting on the circumstances of the vehicle that he was driving. 7. After the lane change and acceleration, the black Corvette began to spin as it moved south of the intersection of 128th and 72nd Avenue. The black Corvette was moving south but it was also swerving to the east towards the middle lane of travel, proceeding southbound on 128th Street.

As it swerved, it spun with its rear end going towards the east and the front of the vehicle moving to the west. The right rear of the black Corvette struck the right front of the blue Honda Accord which was driving straight south in the middle lane. It struck the Honda Accord as it was moving fast past it, with the right rear corner. When I say the rear, we are talking about the rear next to the taillights on the back of the vehicle, striking the right front corner of the blue Honda Accord and then moving on an angle to the right. 8.

The Black Corvette was moving faster than the Honda Accord and as it continued southbound it swerved to the west. Exhibit 6, which is to scale according to the measurements from Cpl. Dyson, shows the movement in two tire tracks which have intermittent brakes, those being T1 and T2 in Exhibit 6. 9. The black Corvette continued, hitting the west curb of 128th, mounting the sidewalk and striking Mr. Benning and the bench. It then spun, striking a bus stop pole, a tree and a garbage container before stopping on a grassy knoll west of the west sidewalk of 128th Street. 10.

I find that from start to finish, the whole movement took less than ten seconds. 11. The driving from start to first contact with the Honda Accord was in approximately five seconds of total time. 12. The intersection of 72nd Avenue and 128th Street is a very busy suburban intersection which was experiencing rush hour traffic. 13. The four corners of the intersection are different. The southwest corner has a telephone building behind which is the campus of Kwantlen University.

The northwest corner has a Shell gas station and then residence properties, some multi-family, some single family adjacent to the gas station. The southeast corner has a bus stop and a strip mall. The northeast corner, a pedestrian walk-through to residential properties. 14. Both 72nd Avenue and 128th Street have four lanes and turning lanes at the intersection. DISCUSSION [ 50 ] I have reviewed all of the evidence and the exhibits. As Mr. Stern has submitted the Crown has failed to prove its case beyond a reasonable doubt, there are issues from the investigation which merit comment. 1.

The police investigators did not preserve the scene to the north of the south crosswalk of 72nd Avenue as 128th crosses from the north to the south. The events which gave rise to these charges started north of the north crosswalk. 2. No photographs or measurements were taken from the starting point of the vehicles to the point of impact with Ms. Franzman's vehicle. The path of travel of the black Corvette to the point of impact with the deceased and the final resting place of the black Corvette are not dealt with in terms of measurements from the north side of the intersection.

The photographs were all pointed in the direction either to the southwest or the south of the intersection, or photographs where the foreground was on the south side of 128th Street looking back at the Shell station. The measurements were taken from the southwest corner of the intersection and did not include the distance from the north side of the intersection to the south side. 3.

The decision by the Integrated Collision Analysts and Reconstruction Service members to limit their measurements, photographs and scene preservation to the south made it impossible for them to provide full analysis of speed and distance in this case. 4. The road surfaces within the intersection were not examined for tire marks or scuffs by the attending police officers or the subsequent ICARS members. 5. The expert motor vehicle inspector, Mr. Jones, was not asked to conduct computer diagnostic checks on the ABS computer. Nor was he asked to conduct computer diagnostic tests on the throttle system.

He did not conduct a test of each of those, or on the throttle pressure plate or on the correlation between fuel injectors and air. That evidence would have been helpful in terms of what caused this vehicle to go out of control. Evidence on those points might also have been of great assistance to both the Crown, the defence and the trier of fact in this case. [ 51 ] In addition to those points, Mr. Stern pointed to the effluxion of time between the accident and the trial.

Memory being what it is, the witnesses frequently adverted to the time leaving them in the position of not remembering clearly what had transpired.

This is particularly of significance in terms of those witnesses whose statements were not obtained until months after they had witnessed the accident. [ 52 ] I am particularly also struck that the respective theories of the parties here involve an analysis not only of the manner of driving on the entering of the intersection and the loss of control in the intersection, but as well, the loss of control or continued lack of control after the vehicle left the intersection.

With respect to that fact, there is quite a distinction drawn between the Crown's theory that it is the manner of driving which led to the loss of control which the court should look to in the case at bar, and the defence theory that we must look to the ABS not working, from Qureshi, and the 9-1-1 call explanation of the accused after the fact and the after-the-fact failure of Jones to examine the ABS, or throttle through computer diagnostics.

[ 53 ] It is correct to say that a reasonable doubt may arise from positive evidence. It is correct to say that a reasonable doubt may also arise from a hole in the evidence. It is also correct to say that a reasonable doubt may arise from a lack of evidence. However, in assessing the whole of the evidence I have been struck by the timing of when Mr. Dhillon lost control of his brother's black Corvette. He did not lose control south of the intersection.

He lost control as he moved through the intersection accelerating rapidly and changing lanes to the right. [ 54 ] I am strengthened in that view by the testimony of the eyewitnesses and by the real evidence, the photographs, the diagrams and the geographical features of the intersection. I am further persuaded by the evidence of Ms. Franzman, Mr. Grewal, Mr. Romanowski that Mr. Dhillon was not even with her vehicle until after the black Corvette had crossed the south sidewalk of 72nd Avenue and he was overtaking her rapidly.

When one considers that the start of T2 in Exhibit 6 was some 25 metres south of the crosswalk and is very close to the point of impact, it being just south of the point of impact, the only reasonable inference in my view is that the black Corvette was spinning out of control prior to the commencement of the tire marks related to ABS braking. This was at a point where the manner of driving had already led to the loss of control. Therefore, while I agree with Mr. Stern that the ABS system may not have been operating properly based on Cpl.

Qureshi's opinion and his assessment of the tire marks, this came at a time later than the focus required on the court in the assessment of the manner of driving of Mr. Dhillon as he entered the intersection. [ 55 ] As was outlined in R. v. Roy at paragraph 34 by Justice Cromwell, the focus is on the manner of driving, not the consequence and not the complete path of driving at the time of the accident. It is the manner of driving prior to the accident. I am mindful that one does not work back from the accident or the horrific consequences which resulted here.

I am also in the view that with respect to the witnesses and the mistakes of fact which made their testimony unreliable, that the effluxion of time was of particular significance. Therefore, the accuracy of the testimony must be considered in light of the capacity to remember, the quality of observation, the duration of the observation, the opportunity to view and evidence of reconstruction or the filling of gaps in description. That was particularly so in the case of Ms. Bond, Mr. Hopkins, Mr. Frilund and Mr. Camara. It was less apparent in the evidence of Ms. Franzman and Mr. Romanowski.

It was somewhat apparent in the evidence of Ms. Hammoud. [ 56 ] But I am struck as well that although there were inconsistencies that were particularly significant to the assessment of whether Mr. Dhillon was engaged in street racing at the pertinent time, they are of less significance on the facts to be found, which I have found in this case in terms of the rapid acceleration and an abrupt lane change. They are of less importance to the question of how he was driving when he became aware he was losing control of his brother's black Corvette.

They go to what we will call the contextual analysis of whether or not the yellow Corvette and the black Corvette were engaged in a street race, and I have found they were not. [ 57 ] In my view, the instructions on the assessment of circumstantial evidence which I have outlined earlier in these reasons are apt in the assessment of the totality of the evidence. I have considered the direct evidence of Mr. Grewal; I have considered his testimony in light of the whole of the evidence.

Bringing to this assessment a measure of realism to the inferences to be drawn from his testimony and the proven facts that I have found and stated, I am of the view that the theory of the Crown has been proven on the facts of the case at bar. I have considered the statements of Mr. Dhillon in Exhibit 9, the 9-1-1 call. I have considered the testimony of Cpl. Qureshi as to the tire marks and the ABS system. I have considered the failures in the investigation to measure to the north of the point of impact and to have computer diagnostics done.

On balance, those factors do not raise a reasonable doubt, nor do they offer an explanation for the manner of driving of Mr. Dhillon. They are of little weight in the determination directed by Justice Cromwell at paragraphs 39, 40, 41 and 42 of Roy . [ 58 ] That does not end the assessment on which I must embark. Although I am of the view that the Crown has proven the actus reus beyond a reasonable doubt, I must turn as well to the fault element. On the fault element the question I must ask myself is whether the driving of Mr.

Dhillon as he entered and proceeded through the intersection and moved south after he had lost control, in combination with the whole of the evidence supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited (para. 42 Roy) . CONCLUSION [ 59 ] I am required to consider the totality of the evidence in light of the legislation set out in s. 249(1)(a). As to the time, we are dealing with rush hour.

As to the nature of the place, it is a very busy place at rush hour with all types of vehicular traffic, as well as numerous pedestrians present either attending to bus stops, going to and from the university or high schools or stores or athletic functions within a very short distance of this intersection. The condition of the roads: this was a clear, sunny day and the road surfaces are asphalt. They were dry. There is no explanation from the road surface as to why a vehicle would go out of control.

As to use of this intersection, it is a busy suburban intersection bordered, as I say, by commercial premises, Kwantlen University and near schools and parks. [ 60 ] The question may therefore be framed as follows. Given the time of day, the very busy nature of this place, the rush hour traffic present, the pedestrians present, the nature of the vehicle (a muscle car with great power) would a reasonable, prudent driver accelerate rapidly and make a lane change inside the intersection? In my view, the manner of driving by Mr. Dhillon was contrary to s. 127 of the Motor Vehicle Act .

The context of the manner of his driving must also be considered in light of the speeds that he had earlier driven when southbound on 128th north of 72nd Avenue. The manoeuvre within the intersection was an intentional risk-taking movement in my view, to accelerate quickly southbound into the curb lane of 128th Street in order to get around Ms. Franzman's vehicle. In my view, though the time was very short, likely three to four seconds, this driving in this place at that time constituted a marked departure from the norm expected of the reasonable, prudent driver. This was a Corvette. It was flashy. It was loud.

It was very quick. In the heavy traffic present, a rapid acceleration of this nature was obviously dangerous when coupled with the quick lane change. [ 61 ] I have considered the differences in the testimonies of the eyewitnesses. As I say, I have not found the evidence of Mr. Frilund, Mr. Camara, Mr. Hopkins or Ms. Bond as reliable. In my view, they are all mistaken about significant details of the placement of the vehicles and where they were, how they proceeded and the fact that they gave conclusory statements of opinion that they were watching a street race.

But they are all consistent as to sound and speed and place. Their evidence, when coupled with Mr. Romanowski, Mr. Grewal, Ms. Franzman and Ms. Hammoud becomes much more significant. Those witnesses were careful and quite objective. Their testimony paints a similar picture of speed and lane changes. Moreover, their view of the events is confirmed by the physical evidence to the extent of where the vehicle went out of control before striking Ms. Franzman's vehicle.

[ 62 ] I have considered the evidence of the witnesses and the whole of the evidence in light of Mr. Stern's submissions. In my view, the operative time is the point of loss of control in the intersection. This vehicle went out of control before the brakes were applied. The application of the brakes did not put the vehicle out of control. A problem with the ABS system may have contributed to the horrific consequences, but the ABS system was not engaged at the time of the rapid acceleration or the lane change. Mr.

Dhillon's conduct during the three to four seconds of his rapid acceleration and the sudden lane change, in my view was reasonably a marked and substantial departure from the conduct expected of a reasonable driver in his circumstances. His intent, as I have said, was either to get away from the crush of traffic or to leave behind the traffic at the intersection. I have found he was not racing. I find that he drove his brother's Corvette in that intersection in a dangerous manner without regard for the risk that his manner of driving posed. [ 63 ] In the result, in my view the driving was objectively dangerous.

This intentional risk-taking, though brief, demonstrated a lack of care serious enough to merit punishment and meet the fault requirement set out in paragraph 42 of Roy . For those reasons, my verdict is that you are guilty of the lesser included charge of dangerous driving causing death. (REASONS FOR JUDGMENT CONCLUDED)